When a consumer trade association “speaks” about the health effects of a product, is its speech on an issue of public interest, and thus within the scope of the DC anti-SLAPP statute, or is it in furtherance of the association’s private or commercial interests, falling outside the statue’s scope? A case pending in DC Superior Court could answer this interesting question.

In November 2014, this intrepid blogger trooped down to the DC Court of Appeals to watch the Mann v. National Review oral argument. In my post, I wrote that the panel was likely to conclude that the denial of an anti-SLAPP motion to dismiss was immediately appealable (having already held, in Burke v. Doe I, that the denial of a special motion to quash under the DC anti-SLAPP statute was immediately appealable), and that the tougher question would be how to apply the “likely to succeed” standard at the motion stage.

If an individual or entity believes a subpoena is aimed at silencing debate on a matter of public interest, can it invoke the DC anti-SLAPP statute in response? That is the question presented by a recent anti-SLAPP motion filed by the Competitive Enterprise Institute in DC Superior Court.

In late March, David Pitts filed suit against two local television stations (Channels 4 and 7), their parent companies, and Patch Media, which runs hyperlocal websites. According to the Superior Court Complaint, Pitts was sentenced in March 2015 for burglary and identity theft. He alleges that, on or about March 20, 2015, “Defendants” reported that he had been sentenced to “two years in jail for setting fires, or arson,” citing to a Channel 4 article.

The DC anti-SLAPP statute has been invoked in a Superior Court lawsuit in which plaintiffs arguing that students need to be free from disruptions in the school environment are facing off against anti-abortion protestors.

Waaaaaaay back in early 2012, after a defendant (Huntington) filed a counterclaim against a plaintiff (Newmyer) for defamation, false light and related torts, Newmyer responded by filing an anti-SLAPP motion (you can read more about the case here). Newmyer’s anti-SLAPP motion was denied by the Superior Court judge, who found that it was filed too late (although he stated that, if he believed the counterclaim was a true SLAPP, “the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework”).

The Superior Court did not need to wrestle with that question, however, because it concluded that there was “no indication” that “this is a claim designed to silence or punish one for speaking out on issues of public importance.” According to the Superior Court, “it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation” when, in the court’s view, “there is no economic bullying here by Dr. Huntington and his claims are not likely to deter Mr. Newmyer from being heard on his contentions.” The Superior Court allowed Huntington to recover his fees, concluding that the anti-SLAPP motion was “baseless and, therefore frivolous.”

The subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review.

Last year, the entire case finally reached the DC Court of Appeals (after discovery and cross motions for summary judgment). In late December 2015, the Court affirmed the Superior Court’s resolution of the anti-SLAPP motion:

We affirm the trial court’s denial of the motion and award of attorney’s fees for two reasons. First, Mr. Newmyer filed his motion on February 29, 2012, more than forty-five days after Dr. Huntington filed his counter-complaint on May 12, 2011. See D.C. Code §16-5502(a) (placing a forty-five day limit on such claims). Second, Mr. Newmyer failed to establish any issue of public interest. See D.C. Code §16-5501(3) (2012 Repl.) (stating that an “‘[i]ssue of public interest’ means an issue related to the health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place” and “shall not be construed to include private interests.”).

My takeaway: the decision shows why there should be an immediate right to appeal the denial of an anti-SLAPP motion. Anti-SLAPP statutes protect parties from “expensive and time consuming discovery” that is often part of libel litigation. If the DC Court of Appeals had decided, in December 2015, that Newmyer’s anti-SLAPP motion should have been granted, it would have come far too late for Newmyer, who had to litigate the case for over three years, with its enormous attendant costs. Making a party go through the entire lawsuit before being able to secure appellate review seems inconsistent with the purpose of the statute: avoidance of potentially unnecessary litigation.

Here are my three takeaways from yesterday’s DC Court of Appeals’ decision, holding that a successful movant under the DC anti-SLAPP statute “is entitled to reasonable attorney’s fees in the ordinary course – i.e., presumptively – unless special circumstances in the case make a fee award unjust,” and reversing a Superior Court decision which refused to award fees to a successful movant. (You can read my prior blog post on this appeal here).

An important decision issued by the Second Circuit last week adds to the growing dissonance among the federal circuits on anti-SLAPP motions. The ruling could impact a case pending before the DC Court of Appeals, and creates another circuit split that will ultimately need to be resolved by the Supreme Court.

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